Trans employees (those identifying as transgender, non-binary and gender queer) are a segment of workers who have historically encountered severe and frequent discrimination at work, including discriminatory hiring, promotion and termination, insensitive treatment and outright physical and sexual assault. In this episode of All Things Work, Jillian Weiss, an attorney specializing in providing legal representation to LGBTQ employees, joins host Tony Lee to discuss the current state of the work environment for trans employees and provide advice for HR and people managers who are new to working with transgender individuals.
Trans employees (those identifying as transgender, non-binary and gender queer) are a segment of workers who have historically encountered severe and frequent discrimination at work, including discriminatory hiring, promotion and termination, insensitive treatment and outright physical and sexual assault. In this episode of All Things Work, Jillian Weiss, an attorney specializing in providing legal representation to LGBTQ employees, joins host Tony Lee to discuss the current state of the work environment for trans employees and provide advice for HR and people managers who are new to working with transgender individuals.
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Tony Lee:
Welcome to the All Things Work podcast from the Society for Human Resource Management. I'm your host, Tony Lee head of content here at Sherm. Thank you so much for joining us. All Things Work as an audio adventure, where we talk with thought leaders and taste makers to bring you an insider's perspective on all things work. In today's episode, we'll be discussing the ongoing push to recognize, protect and assist trans employees in the workplace. Trans employees include those who identify as transgender, non-binary, and gender queer. There is segment of employees who have historically encountered frequent discrimination at work including discriminatory hiring, promotion and termination, insensitive treatment and outright physical or sexual assault. Thankfully, trans workplace equality is an area marked by some very positive recent developments, including the Supreme Court's ruling last June, prohibiting employers from hiring or firing based on trans status, expanded federal protections to LGBTQ individuals, and an end to the ban on transgender soldiers serving in the military.
However, these legal and legislative developments don't guarantee an employment experience free from discrimination because anti-trans biases and prejudice continue to have a presence in the workplace. Joining me for a candid conversation about trans equality at work is Jillian Weiss. Jillian is a Civil Rights Attorney who provides legal representation to LGBTQ employees and has litigated many high profile civil rights cases. She previously served as executive director of the Transgender Legal Defense and Education fund. Jillian is also the co-author of the recently published legal textbook Gender Identity and the Law, which is the very first law school case book to focus on the legal treatment of transgender, gender nonconforming, and non-binary individuals. Jillian, welcome to All Things Work.
Jillian Weiss:
Hi Tony.
Tony Lee:
Thanks so much for being here. We really appreciate it. So I mentioned a little bit earlier the Supreme Court case, the Bostock ruling from last June. And I'm wondering, would you say that the work environment has improved of late for trans employees or is the struggle that many trans employees feeling essentially the same even after the ruling?
Jillian Weiss:
Well, I think it's a mixed bag in the sense that in some places it is getting better and demonstrably so. In other areas, other sectors, it's getting a bit worse in the sense that issues that may have been under the radar before are now right out in the open. But my sense is overall things are improving because people are becoming more aware about trans people. And just like when people were getting used to gay people in the workplace, there was a lot of vigorous back and forth, shall we say? But now that's kind of subsided a lot and people are much more understanding whether they have any concerns about that or not. And I think the same is beginning to happen with trans people.
Tony Lee:
So with the Bostock ruling, it kind of started a movement or at least continued one that now we have the Equality Act being introduced. Do you think that there's a likelihood now that the Equality Act could become law?
Jillian Weiss:
It certainly is possible. And I think a lot will depend on the political will of Democrats in Congress as to whether they're willing to spend their political capital on that. I know in the past, this has been an issue. We did have more than 10 years ago, I guess, votes on the Employment Non-discrimination Act, which was never enacted, but it got quite close and we probably could have done it in the early years of President Obama's administration. But there were other priorities that came first. And so I think we certainly could pass it now, but the question is whether that's going to be something high on the Democrat's agenda when we have a pandemic and job issues and infrastructure issues and foreign relations issues and so on. So we shall see.
Tony Lee:
Yeah. So as an attorney who represents LGBTQ employees, what would the Equality Act passage mean to them do you think? How would it change the legal landscape?
Jillian Weiss:
Well, it would affect a lot more than employment. It would really cover every area of civil life just as the Civil Rights Act of 1964 does. I mean, for example, would cover public accommodations. That would be a huge change in law, as well as many other areas. I mean, it touches on everything. Family matters, housing credit, all those kinds of things. And so it would really change things quite radically in the sense that now people who were discriminated against in these different areas of civil life could potentially have a claim. And so obviously people who are in these different areas of life would have to now rethink how they treat LGBTQ people.
In terms of employment, I'm not sure how much of a radical difference it would make because we've already had these protections actually for quite some time in many areas of the country, because many federal circuit courts had ruled that transgender people were protected under the sex discrimination laws, but now we have Bostock. And so that clarified for all of the federal courts in the country. So they all understand now that this kind of discrimination is prohibited. And so the Equality Act of course, would put that into a statute, which is a lot clearer and easier. You can say "Here, look at these, look at this sentence, it says don't do this." Whereas trying to explain the Bostock case to someone can be a little abstruse.
Tony Lee:
So it's been a little time now since the Bostock ruling, what types of workplace discrimination cases are you still seeing involving trans employees?
Jillian Weiss:
Well, I mean, it's the typical kind of thing you see in all kinds of job discrimination cases. Somebody feels that they are being treated differently because of their protected category. And there's oftentimes some comments that are made, there's an approach to HR to try to resolve this. It's not resolved to the satisfaction of the employee, then some other kind of adverse employment actions occur, whether it be a suspension or demotion or transfer or termination, and then we're off to the races with the claim. And of course the question like in all job discrimination since 1964 is, did this in fact occur. And of course the law really only kind of touches the most overt types of discriminations. It often ignores things like that we now call microaggressions. Although I don't particularly like that term because there's no aggression that's micro if you're the subject of it. But we now have an easier time bringing these claims and people are more aware of their rights. So that's positive development.
Tony Lee:
What do you typically hear employers say when they're confronted with a case like this? I mean, is it typically, "Oops, we messed up." Or is it, "Well, we don't think that's discrimination." I mean, I know it's hard to generalize, but in particular with trans employees, is there a common thread that you hear back from employers?
Jillian Weiss:
There really is. And it is, "We looked you up. We think that the work you're doing is wonderful. Thank you for protecting people and civil rights and so on, but we just want you to know in this particular case, we didn't discriminate. We love everybody. We have diversity everywhere. We sleep with it and eat it and so on. And so in this particular case, the employee was too sensitive or they really were not a good employee or something happened that had nothing to do with us. And we did everything we could. And so, in this case, you should understand we're good people and we would never discriminate." That's always the response. It's never, "Oops."
Tony Lee:
Right. So like other discrimination cases that you've referenced that from decades past, I'm assuming it's still pretty rare to get to court that employers typically are looking to settle. Is that different here? Or is that essentially the same?
Jillian Weiss:
Well, I mean, employers want to settle if it's reasonable and of course they assess the risks in terms of the cost of taking the litigation through to trial and chances of winning and what an appeal might involve and so on. And sometimes it's a matter of principle for an employer. They really do not want to be tarred with that brush and they are willing to kind of do whatever it takes to fight the case, because they're not only thinking about this case, they're thinking about the hundred cases behind it of other people who might experience something that the employer may feel falls short of discrimination, but would then be encouraged to bring a claim. So, that's part of the calculation. Others, yes, they'd like to settle, but they, they want to settle for something they consider reasonable, which is often quite different from what the plaintiff thinks.
And so it's just a matter of conflict resolution and demonstrating to them that there really is something here. And I will say that most of these cases are handled on a contingency fee basis, meaning that the attorney only gets paid if something is collected. So that means as an attorney, you really have to vet the case pretty carefully. And as carefully as you may vet it, you're never going to know as much at the beginning of the case as towards the end of the case after you've had lots of information exchange and depositions and so on. And both parties are getting educated and eventually they realize, oh, okay, now here's where we're willing to do it and most of them do get settled.
Tony Lee:
Right. And are you finding that most of the cases come about because of a single individual within the company, whether it be a people manager who made the error or a colleague as opposed to say a systematic discrimination or is that an issue as well?
Jillian Weiss:
Well, I would call it a systematic discrimination, but what I mean by that is that the way that HR is often set up is that it's there to protect the company, which is totally understandable. Because why else would you have such a department? They have to make sure the benefits are done correctly and the payroll and then this and that. And this area is no different, but the way that many HR people view a claim of discrimination is to see, okay, is this substantiated? Do we have an independent third party witness who can say yes, this happened? Or a person admits yes, I said this. In the absence of that, they'll often just say, "Look, it's unsubstantiated. We don't know. We're not going to make a credibility determination. And so we're not going to do anything because as far as we know nothing happened." That's where the problem comes in.
And I do think that HR can avoid lawsuits by being more vigorous in terms of investigation, because there's many ways to find out what happened. You can look at emails, you can see if there's texts, you can talk to people who observed the two people together at any point. The question really is never, okay, freeze frame did this thing get said. It's always, what is the environment like? And that's where HR tends to not really be so proactive. So that's why I see this as systemic because most of the cases involve someone who complains about something and nothing is done.
Tony Lee:
Okay. So I understand where you're coming from. So I'm going to put on my HR hat here for a minute and say, a lot of times HR is following the lead of company leadership. That the chiefs of the company have said, "This is how we want you to investigate these types of claims. And this is how we want you to respond to these types of claims." So in those cases, I'm sure you've seen that happen. Where do you go from there? Because obviously it's much broader than an individual situation.
Jillian Weiss:
Well, I think that is true because HR is like any other era of employment. You want to do what the organization has hired you for. You want to do a good job. You want to fulfill their expectations. And if their expectations are, you know what? We don't want to be bothered with this. Most of these things just go away. So forget it. Most of these people are just complainers and if it's not clear, then we're not going to do anything. Others are like, no, we really want to follow up everything. And even if we decide in the end to take no action, at least everybody involved in that situation, including witnesses and people who may have seen these things happen are on notice that it is going to be really looked into. And that sets a tone. Maybe it's not always the tone that the company wants because nobody wants to feel like someone's looking over their shoulder. But in some instances you need to look over people's shoulders and make sure that they're getting the results, they're doing what they're supposed to do, and they're not doing what they're not supposed to do.
Tony Lee:
Let me ask you this. Do you think a company's response to a discriminatory claim from a transgender employee might be generational? That younger HR, younger managers may have a different approach than older, maybe boomer managers might have.
Jillian Weiss:
There might be some difference on average. So we might see a difference in percentage of people understanding the issues. But, I don't know of any studies like that. In general, of course, people of my boomer generation, as we now call it often are not that up on these issues, but sometimes we are. And we're better than the younger people because we've been around longer and have had more time to absorb the issues. But I do think on average, younger people have seen more of this growing up of the ideas of equality and LGBT people. And it's not so strange. So my guess is there might be some difference on average.
Tony Lee:
Another big issue that employers I know are wrestling with is how to train people managers to better be able to act, react to employees across a wide range of issues, not just transgender employees, but any employee on a diversity related issue. How important do you think training is in helping managers understand the different types of employees who they oversee?
Jillian Weiss:
I think it's extremely important. And routinely when I bring a claim, I not only ask for appropriate monetary damages to make the person whole for their losses, but also an element of training and policy changes so that people are better trained to handle it. And oftentimes these employers will say, "Well, we already have training." Well, it wasn't working very well is my response. And it might turn out, well, it was an hour a year. They had to look at a webinar and click some buttons and maybe they could even just turn off the sound or whatever. And anyway, how much can you learn from a webinar in an hour? So yes, training's important. Training's important for managers because they have to, what do I look for to see whether something negative is happening? What are the signs? Obviously they're not going to be around to witness everything.
So how do they get a sense of what's a real complaint and what's just somebody who is either hypersensitive or trying to cover up some work performance deficit by raising claims and you don't just know that. I mean, it's taken me quite a long time in my career. I've been practicing law for 35 years. Took me quite a long time to figure out what's real and what's not real or what I think is real and what's not real. I'm not going to say that I'm the arbiter, but I have a sense. And so far I've been doing okay in that my firm still has the lights on and so on. So you do need training for that. You need training for investigators. Okay. How do we do this? What do we look for? Not just take somebody and throw them in and say, "Yeah, go ask a bunch of questions and come up with some random report." Not good.
Tony Lee:
There is companies that are trying to address this by trying to remove confrontation from the equation. In other words, they're not making managers and maybe their older line managers feel guilty about what they don't know. Right. They may have never worked with a transgender employee before. They may not have ever met a transgender employee before, depending on where they're located and what industry they're in. So what the company's doing is approaching it with let's answer questions. Let's explain, let's make sure you understand as opposed to oh, you screwed up. So what do you think of that approach?
Jillian Weiss:
I think that's an excellent approach. And I think it's important and it should be adopted by every employer. I mean, one of the things that I've noticed is that in some of the cases that I have employers feel that they're going to avoid problems by just ignoring this. And they're like, "Okay, no, we're not going to give any training to employees about what transgender issues are. We're not going to answer any questions. We're just not going to talk about it. And you come in and you do your gender transition. It's private matter." But it's not a private matter because it's necessarily public. When someone is known in the company as a woman. And then all of a sudden they're coming in, dressed like a man asking to be using male pronouns, using a different name and so on and expecting to be treated differently.
Unless people are prepared for that, they don't know what to do. They don't know what questions they can ask. They may very innocently asked questions about whether a person is having surgery or not, which is highly personal and invasive. We wouldn't do it with someone who had some kind of ailment or medical issue, but in this area they just don't know. So unless you give people something so that they understand what the parameters are, of course it's going to be a mess.
Tony Lee:
Well, that's great insights. And we have time for one last area. I guess my question would be, so if you were advising an HR professional who perhaps hasn't worked with transgender employees before and now they have hired someone who's identified as, as transgender, what advice would you give to that HR professional so that they make sure that there is no discrimination in their workplace?
Jillian Weiss:
Well, number one is read up on this. There's now a million different things you could read about how to address transgender employees in the workplace. SHERM has some excellent materials and there are other organizations that have materials as well. So study up a bit to think about if I'm needing to study up, what do the people who are going to be interacting with this transgender employee need to know? And of course that may be different. You're not going to tell them, go read a series of books, but you might have a FAQ of a page or so to say here's what you should know. You might have a training session, whether voluntary or mandatory to say anyone who wants to know more about, and you don't have to reference the employee and say, well, we're doing this because of Joe.
We're interested in diversity. We have a session on this, please come and find out, it'll take half an hour or an hour or whatever. And then also to make sure that their policies are up to snuff, meaning that it doesn't just say we don't discriminate based on gender identity, but that it actually has things that guide managers and employees about how to address transgender questions on all sorts of areas. I mean, benefits needs to know about how insurance works. There may be a security department that needs to know how security clearances work. It could be many things, but that preparation is crucial.
Tony Lee:
Yep. Well, that's going to have to do it for today's episode. I really have a big thank you Jillian Weiss for joining me to discuss the trans workplace experience. Thank you. It was really some terrific insights and some terrific advice. Before we get out of here, I want to encourage everyone to follow and subscribe to All Things Work wherever you listen to podcasts. And while you're at it, be sure to give us a five star rating and leave a review. Also be sure to check out SHERM on Facebook, Twitter, and LinkedIn. And finally you can find all of our episodes of the All Things Work podcast on our website at sherm.org/atwpodcast. Thanks for listening. And we'll catch you next time on All Things Work.